The Common Heritage of Mankind - Springer Link

Chapter 7

The Common Heritage of Mankind: Reaping Without Sowing

From each according to his abilities, to each according to his needs Karl Marx (1875)

7.1 Introduction A spectre is haunting outer space: the spectre of communism. “In the earlier epochs of history” – wrote Marx and Engels (1848, para. 1) – “we find almost everywhere a complicated arrangement of society into various orders . . . In ancient Rome we have patricians, knights, plebeians, slaves; in the Middle Ages, feudal lords, vassals, guild-masters, journeymen, apprentices, serfs”. And in the space age, we have the antagonistic spacefaring and non-spacefaring nations, developed and developing states, the “North” and the “South”. The post-Sputnik and post-colonial era could not escape the materialist conception of history, whereas the world and its extraterrestrial surroundings are the scene of the class struggle between the haves and have-nots. Marx, Engels and many other communists sought an end to capitalism and the establishment of an egalitarian society. The 20th century saw the establishment of several Communist States, and the adoption of several Socialist principles into the mainstream. In the 1970s, the Marxist ideas received escape velocity through the work of the United Nations, who oversaw the drafting of the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies”. Of special importance are the provisions of its Article 11.1 stating that “[t]he moon and its natural resources are the common heritage of mankind”, of Article 11.5 whereby States Parties agree to create “an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon”, and of Article 11.7.d, where one of the main purposes of the above regime is revealed as being: An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

Whereas at the beginning of the Space Age the Soviet technological superiority sparked fears in the United States that “space would soon be res communist, not res communis” (McDougall, 1985, p. 202), two decades later the Moon Agreement V. Pop, Who Owns the Moon?, Space Regulations Library Series 4, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9135-3 7,

121

122

7 The Common Heritage of Mankind

effectively planted the Communist standard in the lunar soil. The following chapter will critically analyze and rebuke the concept of the Common Heritage of the Mankind (CHM), as envisaged in the Moon Agreement, as an archenemy to space development.

7.2 The Genesis of the CHM Concept The Common Heritage of Mankind concept has been presented, in most of the literature, as having originated in the 1967 proposal of the Maltese Ambassador to the UN, Arvid Pardo, that the sea-bed and ocean floor beyond national jurisdiction should be declared the Common Heritage of the Mankind by the United Nations General Assembly (Paxson, 1993, p. 501). This is not wholly accurate, as both similar ideas and similar language have been used before. During the Moon Agreement negotiations in the Legal Subcommittee of the UNCOPUOS, some national delegates were not pleased with the diplomatic term chosen, asking off-the-record – “Who died and left the moon to mankind?” (Thomas, 1980, p. 159). The same question was asked by Dekanozov (1974, p. 202): [I]f celestial bodies and their resources are common inheritance, and succession in civil law is transfer of the property of a decedent (testator) to his successor (heirs), who then should be considered as the testator and has he existed at all?

The heritage in question is not the result of a death, yet it stems from a testament – namely the Old Testament, where God blessed the first humans to “fill the earth and subdue it” (Gen 1:28, NIV). This tenet was seen by Pope Pius XII as referring not only to out planet, but to “the whole of creation which He offered for the human spirit to penetrate” (Cheng, 1957, p. 505). The term itself has been used verbatim as early as the 1840s–1850s; as shown elsewhere in this work, US Senator William Henry Seward delivered a speech in 1850 where he described the newly acquired public domain as “part of the common heritage of mankind, bestowed upon them by the Creator of the universe”, and called for its enjoyment “either in common or by partition” (Seward, 1850, paras. 22– 23). The idea of a possible partition of the divine bequest is not new to Seward; in the 17th Century, John Locke suggested that “God gave the world to men in common; but . . . it cannot be supposed he meant it should always remain common” (Locke, 1690, Section 34). Communist editor Hermann Kriege (quoted by Marx and Engels, (1846) endorsed the promoters of the American land reform, who “call the soil the communal heritage of all mankind” and want “to preserve as the inalienable communal property of all mankind the 1,400 million acres of land which have not yet fallen into the hands of rapacious speculators”. For this reason, he shared in the goal “to place 160 acres of American soil at the command of every farmer, from whatever country he may hail, so that he may feed himself”, a plot “which they needed only to settle and make fruitful with the labour of their hands”. While “heritage” is the word chosen to figure in the English text of the Moon Agreement, the Spanish text contains the term “patrimonio” and the French one

7.2 The Genesis of the CHM Concept

123

refers to “patrimoine”; together with the Arabic, Chinese and Russian texts, these are equally authentic, according to Article 21 of the Moon Agreement. On an international level, calls for the international community to regard as “common patrimony” those “things which cannot be held by one nation without detriment to the others” were put forward, as early as the 1830s, by Latin American jurist Andrés Bello. In 1898, French lawyer Albert Geouffre de Lapradelle argued that the oceans should be considered “the patrimony of humankind”, a concept shared six decades later by Prince Wan Waithayakon of Thailand, the President of the first Law of the Seas Conference (Schmidt, 1989, p. 23). In 1949, R.A. Smith wrote that “the Moon is not the property of any state; if it is untenanted, it is the common heritage of mankind”, whereas Lionel Laming and Oscar Schachter declared, roundabout the same time, that not only the Earth, but all the solar system deserves to be considered as the heritage of mankind (Doyle, 1997, p. 10). Not much later, in a 1953 article, Joseph Kroell (quoted in Cocca, 1986, p. 17) stated that “L’espace extra-terrestre . . . forme le patrimoine commun de l’Humanité”. In July 1966, the United States were called upon by President Johnson to ensure that “the deep seas and ocean bottoms are, and remain, the legacy of all human beings” (Schmidt, 1989, p. 24). Five months later, the UN General Assembly adopted the Outer Space Treaty, whose Article I provides that “[t]he exploration and use of . . . the . . . celestial bodies . . . shall be the province of all mankind”. A resolution of the World Peace through Law conference adopted in early summer 1967 declared the seas beyond the continental shelf to be “the province of the UN” (Schmidt, 1989, p. 23), whereas in June of the same year, Aldo Armando Cocca introduced the CHM concept in the discussions being held in the Legal Subcommittee of the UNCOPUOS (Jasentuliyana, 1997, p. 58). Markus G. Schmidt (1989, p. 23) deems that, while many of the proposals above were “vague and without backing”, Arvid Pardo’s plan was “both timely and well conceived”. As suggested by Gennady M. Danilenko (1998, p. 250) the CHM concept needs to be assessed within the broader context of the developing world’s efforts at that time to radically change the existing system of international economic relations. Indeed, the end of the 1960s saw a paradigm shift within the United Nations, with an increasing empowering of the developing countries; an important step would be taken in 1974, with the adoption by the UN General Assembly of Resolution 3201 titled “Declaration on the Establishment of a New International Economic Order”. Elevating the concept of class struggle into outer space, this particular document outlined the widening gap between the developed and developing world, noted that “[t]he benefits of technological progress are not shared equitably by all members of the international community”, and proclaimed the need for establishment of a “new international economic order based on equity . . . interdependence, common interest and cooperation among all States . . . which shall correct inequalities”. In 1976, the Club of Rome released a report titled “Reshaping the International Order” (quoted in Vicas, 1980, pp. 301–302), where Outer Space was seen as “a geographical entity forming a ‘common heritage of mankind” that calls for “ensuring that all nations, not only the powerful and rich, benefit from its exploration and exploitation” through its “effective management”.

124


According to Danilenko (1998, p. 250), the developing world attempted to use the CHM concept during the negotiations for the 1982 United Nations Convention on the Law of the Sea and the 1979 Moon Agreement in order to establish a framework for exploiting the resources of the moon and of the sea-bed. The CHM would secure the direct participation of the developing world in the exploitation and international management of these resources, would prevent their monopolization by the developed countries where the developing world does not yet have the technology or financing necessary, and would distribute the benefits “primarily in the interests of the developing countries”. As it can be seen from the long history outlined above, the CHM paradigm underwent many changes – from a Creation open for homesteading and partition as seen by Locke and Seward – to its contemporary, egalitarian incarnation. The analysis will concentrate on its later form.

7.3 The Contents of the Common Heritage of Mankind Whereas Stanley B. Rosenfield (quoted by Wiewiorowska, 1980, p. 84) deemed the CHM doctrine as being “without legal context [;] [a]ny meaning, and legal import, must be indicated by added principles”, Article 11.1 of the MA is clear enough in stating that: the common heritage of mankind . . . finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article.

Van Traa-Engelman (1980, p. 76) considers that the above tenet broke the “deadlock in the discussions on the applicability of the [CHM] doctrine as a legal concept”, yet “the material content of the concept can still be subject to discussion”. Indeed, as recognized by Andem (1999, p. 4), its provisions have been subject to conflicting interpretations. According to Francis Lyall (1998, p. 132), it is becoming accepted that, in any incarnation of it, the CHM concept presents a number of particular elements, namely: that certain regions should not be subject to national appropriation in any way, that there will be a management system for such an area, that the managers, be they state or international organisation, will act as representative of mankind, that any benefits from such areas will be shared internationally, and that the area will be used for peaceful purposes only.

Alan Marshall (1995, p. 52) agrees that the CHM is “not a well-defined concept”, yet his “own predilections” suggest that the paradigm comprises the following traits: 1) non-appropriation (this is adequately encapsulated in the Moon Treaty, but is deficient in the Outer Space Treaty), 2) universality of applicability (to all states and to all parts of space, including space itself; this would thus make nations and private firms liable for rent payment with regard to orbital occupation), 3) universality of formulation (so that all states participate in the drawing up of space law),

7.3 The Contents of the Common Heritage of Mankind

125

4) equitable distribution of space resources (the meaning of equitable being decided by all states), 5) the use of space for peaceful purposes. . .

The vision of an economic system in outer space whereby property shall be controlled by a UN body and communally owned by all the nations is considered by Michele Hamilton (1998) as “nothing more than communism: a communal system of ownership where private property rights and free market principles simply do not exist”. Indian scholar Mani (1996, p. 33) acknowledges the view of the developed countries, who regarded the CHM concept as being: the institutionalisation of the ‘menace’ of international socialism (read communism), proliferation of international bureaucracy, and threat to their technological superiority – in short . . . an anathema to everything the Western capitalist ideology stood for.

The idea that the CHM is a socialist/communist concept is not far-fetched; indeed, both the legal analysis and the diplomatic statements support this view. Whereas several of the above characteristics do not pertain ratione materiae to the subject of this book, an analysis is needed as to the property implications of the Moon Agreement. It is important to point out that the CHM as envisaged by the Moon Agreement is not the same with the CHM envisaged by the international law of the sea documents. As it will be shown in the next chapter, the UN General Assembly declared, in December 1969, a moratorium on the exploitation of the deep seabed resources pending the establishment of an international regime for the development thereon. No such moratorium has ever been proclaimed for the Moon. This is perhaps due to the general opinion that the exploitation of the manganese nodules of the deep seabed is more feasible with the current technology, whereas that of the lunar resources pertains to a more distant future – hence in a lesser need for regulation. The language of the Montego Bay Convention – as per its 1982 incarnation – is also tougher than the language of the MA. Article 137 of the UNCLOS, outlining the legal status of the “Area” and its resources, provides: 1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized. 2. All rights in the resources of the Area are vested in mankind as a whole on whose behalf the Authority shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules, regulations and procedures of the Authority. 3. No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.

126


The 1994 Agreement relating to the Implementation of Part XI of the Montego Bay Convention softens the hard-line provisions of the UNCLOS, given the “political and economic changes, including market-oriented approaches, affecting the implementation of Part XI“ – as noted in its Preamble. The 1994 Agreement has a greater legal force than the Convention (Article 2.1). Whereas this is not the place for examining the legal status of the deep seabed or the oceanic incarnation of the CHM, the above example has been given as a means of illustrating the lack of uniformity – territorial and temporal – of this concept.

7.3.1 The Prohibition of Private Landed Property As shown elsewhere in this work, Article II of the Outer Space Treaty prohibits the national appropriation of the extraterrestrial realms. While this denies, in practice, the private appropriation of the same, Article 11.3 of the Moon Agreement contains a facial prohibition of landed property in outer space: Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.

Libertarian commentator Edward L. Hudgins (1998) believes that the model for the Moon Agreement, where “[p]rivate property is explicitly banned”, is the Soviet constitution. Indeed, whereas Article 13 of the 1977 Constitution of the USSR allowed Soviet citizens to own “articles of everyday use, personal consumption and convenience, the implements and other objects of a small-holding, a house, and earned savings”, this did not apply to land. According to Article 11, “[t]he land, its minerals, waters, and forests are the exclusive property of the state”, private citizens being provided, by means of Article 13, with a limited jus utendi: Citizens may be granted the use of plots of land, in the manner prescribed by law, for a subsidiary small-holding (including the keeping of livestock and poultry), for fruit and vegetable growing or for building an individual dwelling. Citizens are required to make rational use of the land allotted to them.

Article 10 placed the “socialist ownership of the means of production” at the “foundation of the economic system of USSR”, whereas the “principal form of socialist property” in Soviet Union was State property, defined by Article 11 of the Soviet basic law as “the common property of the Soviet people”. Adding up Articles 11 and 13, it can be seen that all land and resources in the USSR was the common property of the Soviet people, while individuals could own a house, the implements of a farm, and could exercise user rights over the land granted to them for subsistence farming and dwelling. The Moon Agreement considers all land and resources on the Moon as the common heritage of the Mankind (Article 11.1), while individuals can own lunar stations, vehicles, equipment, facilities and installations (Article 12.1), and can exercise user rights over a limited area which is required for the needs of the station (Article 9.1).

7.3 The Contents of the Common Heritage of Mankind

127

Article 11 of the Moon Agreement is in resonance with the 1848 Manifesto of the Communist Party, whereby Karl Marx and Friedrich Engels called for the “[a]bolition of property in land and application of all rents of land to public purposes”, entrusting the proletarians with the mission “to destroy all previous securities for, and insurances of, individual property”. This is the core belief of Communism; as acknowledged in the same document: [T]he theory of the Communists may be summed up in the single sentence: Abolition of private property (Marx and Engels, 1848).

The private property in other legal categories – that is, extracted resources and planetary structures, as regulated by the MA, is scrutinized elsewhere in this volume.

7.3.2 The “Equitable” Sharing of Jus Fruendi The key tenet of the CHM is the distribution of benefits. As an attribute of property, jus fruendi embodies the right to enjoy the income (fruits) derived from an asset. It will be seen elsewhere in the book that, even under the Moon Agreement regime, private property may exist in the resources extracted from the Moon. Nonetheless, this private property cannot be fully enjoyed, as Article 11.7.d of the MA provides for: [a]n equitable sharing by all States Parties in the benefits derived from [the natural resources of the Moon], whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

In the 1979 report of the Independent Commission on International Development Issues, titled “North-South: A Program for Survival”, the commission chaired by Willy Brandt (quoted in Vicas, 1980, p. 303) considered that “Global commons’ is a neat catchword, but hardly appropriate”, because: It connotes villagers in medieval England who have the right to pasture their cattle in the village commons. The space analogy is nations ‘pasturing’ their satellites in the global commons. The term connotes something of free access to outer space, but none of the distributional aspects of the ‘common benefit’ or ‘common heritage’.

Indeed, whereas a res communis offers free access, it does not entail a share of the benefits. The villager pasturing his cow in the village commons needed not share the meat and milk with the other villagers, even if originated from the grass grazed from a common pool. In contrast, under the CHM regime, the lunar miner has to share with all other humans what his equipment extracted from the Moon. According to Stephen Gorove ( 1985, p. 227), as long as the space powers do not ratify the MA, their private enterprises are “entitled to acquire and retain space resources” for their own disposition “without limitation on possible profit”. Lenin (1917) defined Socialism as the “social ownership of the means of production and the distribution of products according to the work of the individual”; in his view, socialism will “ripen into Communism, whose banner bears the motto: ‘From

128


each according to his ability, to each according to his needs’. Christopher Pinto, Sri Lanka’s ambassador to the Law of the Sea Conference (quoted in Danilenko, 1998, p. 257) expressed the view of the developing countries that the CHM, as incarnated in the Law of the Sea Convention, implements the principle according to which “each country will contribute according to its capacity and each will receive according to its needs”. The tenets of the Moon Agreement hold middle ground between Socialism and Communism, providing for a share of the lunar benefits from each according to his ability, to some according to their work and to some according to their needs. The CHM, as incarnated in the MA is even more radical than the Soviet doctrine. Article 18 of the 1918 RSFSR Constitution considered work as being the duty of every Russian citizen, proclaiming as its motto: “He shall not eat who does not work”. Article 14.2 of the 1977 Soviet Constitution provides that: The state exercises control over the measure of labor and of consumption in accordance with the principle of socialism: ‘From each according to his ability, to each according to his work’.

The 1918 Soviet contribution obliges every citizen to work; no part of corpus juris spatialis obliges any State to explore and use the Moon. Article I of the OST asks States to “facilitate and encourage international co-operation” in the scientific investigation of the extraterrestrial realms, whereas Article 4.2 of the MA expects that: [i]nternational co-operation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through international intergovernmental organizations.

Nonetheless, the exploration and use of the Moon is a freedom, not an obligation. Whereas Article 11.7 of the MA does give “special consideration” to the efforts of the countries having contributed to the exploration of the Moon, this is not the only basis for assigning jus fruendi; the “interests and needs of the developing countries” – whether lunar explorers or not – are part of the benefit distribution equation. According to Brian M. Hoffstadt (1994, pp. 591–592), the meaning of “equitable” in the Moon Agreement creates uncertainties, especially as to its impact upon the amount of profit private companies will be allowed to keep; he deems that no investment will occur until “equitable” is defined and the profit distribution is settled. Although not a Member State to the Moon Agreement, the US distributes globally some of the benefits from its space activities. As it will be shown infra, a number of lunar samples have been given, free of charge, to other countries, although their extraction was sponsored by the US tax payer. In the same time, NASA (2005) surrendered the copyright for still images, audio files and video, subject to certain conditions. This is done subject to a different benefits provision, where no distributive system is envisaged and no “regime” exists for distributing the same. Article I of the Outer Space Treaty provides that: The exploration and use of [the celestial realms] shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

7.4 Arguments for the Common Heritage of Mankind

129

Article 4.1 of the Moon Agreement repeats, in a different wording, the above clause, adding: Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations.

State practice indicates that, under the terms of Article I of the Outer Space Treaty, States are willing to share the scientific results from space exploration, yet not the profits stemming from commercial space activities. On December 13th, 1996, the UN General Assembly adopted a “Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries” (A/RES/51/122). The Declaration evokes the provisions of the OST, without making any reference to the provisions of the Moon Agreement. An important principle is contained in para. 2 of the above document, allowing States the freedom to determine, on an equitable and mutually acceptable footing, all the facets of their participation in international cooperative ventures in the exploration and use of space. A special attention is paid to the contractual terms in cooperative ventures, which ought to be fair, reasonable, and fully conform to the legitimate interests and rights of the contracting parties. Whereas para. 3 calls countries with more advanced space capabilities to be particularly aware to the interest and benefit of countries with incipient space programmes and developing countries stemming from cooperative space activities conducted with them, no reference whatsoever is made to the distribution of profits from non-cooperative ventures. According to Marietta Benkö, Schrogl (1997, p. 159), the above declaration denounced the “forced cooperation and dirigist approaches for reaching redistribution”, stressing in the same time the “freedom of cooperation and the need for effectiveness in international cooperation”. In their view, shared by us, the 1996 declaration came at the right time, in order to spell out that “no distributive or systemic conflict in the field of space applications and cooperation is alive”.

7.4 Arguments for the Common Heritage of Mankind As shown supra, law and politics are intertwined. Since the CHM concept lies on the left of the political spectrum, it is favoured by those who support, with various degrees:

r r r r r r

collectivism rather than individualism; internationalism instead of nationalism; cooperation more than competition; the economic interests of the have-nots before those of the haves; economic equality more than economic liberty; redistribution of wealth instead of acceptance of inequalities;

130

r r r


equity as opposed to efficiency, or fair outcome as opposed to fair process; interventionist versus laissez-faire economics; bigger versus smaller government.

All these common traits of socialist ideology can be found in the CHM paradigm. Many arguments are emotional, making appeal to the “brotherhood of Man”. For instance, Indian scholar V.S. Mani (1996, p. 36) hopes that the spacefaring states will “rise above their short term, narrow, Shylockian view of profits” and show instead “magnanimity, compassion and camaraderie to the whole international community”. Alan Marshall (1995, p. 52) views the CHM paradigm and its adoption into a regulatory regime as a repellent of space imperialistic tendencies. He believes that the “mildness” of its prescriptions would entail the support of “many, maybe most, space enthusiasts”. Those holding a contrary view are seen as either more interested in the personal profit they could make from space endeavours, or eager to forgo the “rights and concerns of many of the world’s people” for the sake of outer space expansion. On a similar line of reasoning, Maurice Andem (1999, pp. 7–8) believes that the unpopularity and non-acceptance of the Moon Agreement is due to the fact that individualistic national interest is given priority over the common interest of the humankind as a whole. He considers that the CHM principle conveys a universal truth shared by the main religions, expressing the common origin of the human race. Francis Lyall (1998, pp. 132–134) agrees that the CHM principle is a major reason behind the lack of a stronger support for the Moon Agreement, and finds some weight in the argument that the have-nots are freeloading. He reckons that the said paradigm is an endeavour by the nations whose technical or other ineptitudes preclude them from exploiting the space resources, to induce spacefaring nations into investing “time, trouble and finance in a project, and then divert to non-participants and non-investors some of the rewards of these entrepreneurial activities”. Yet Lyall is wary to fully dismiss the CHM, whose core he views as a moral imperative to preserve and foster if one is to avoid barbarity: “Have’ and ‘have-not’ are too intertwined nowadays for the one to neglect the interests of the other”. He is in expectative as to whether the CHM benefits in the law of the sea will indeed reach the peoples of the developing world or will instead be hijacked by their rulers, yet the opportunity for abuse is not considered by Lyall as enough of a reason to shelve the CHM concept. Daniel Goedhuis (1981, p. 8) considers that, while the CHM concept in its space law embodiment did not reduce the inequalities between the developing and developed states to the extent initially sought, it would be nonetheless “difficult to think of an alternative system which, in the light of the present factual situation, could have been devised”. While socialist attitudes from Western analysts are not surprising, what is paradoxical is the eventual lack of support for the Moon Agreement from the very nations it was to benefit. It is also surprising that neither the USSR, nor China or any other Communist nation acceded to it. By 2006, the document has been ratified only by Australia, Austria, Belgium, Chile, Kazakhstan, Lebanon, Mexico, Morocco, the Netherlands, Pakistan, Peru, Philippines, and Uruguay.

7.5 Arguments Against the Common Heritage of Mankind

131

As a parenthesis to the CHM paradigm, space collectivism is favoured also at a smaller scale, to some extent on practical grounds. Kalani Chapman (1995) envisages a settlement on Mars modelled on the kibbutz system, where the sense of community will be emphasized “to an infinitely greater extent than the dominant western capitalistic culture on Earth does today‘”. Chapman’s settlement would see the basics for survival (air, water, food and shelter) unconditionally provided for each member. The chief values of the community will be cooperation and mutual aid as opposed to capitalist exploitation. In the early stages – considers Chapman – settlers will work for the sake and the goals of the community, carrying out the functions they excel most at or they most desire: “[E]ach member will contribute what he/she/it can, and each will be provided for (‘From each according to his ability, to each according to his needs’)”. Nonetheless, once the extraterrestrial settlement is largely self-sustaining and automatic systems are established, “people will be free to do as they please”.

7.5 Arguments Against the Common Heritage of Mankind In 1987, US President Ronald Reagan (quoted by Pryor ,2003, p. 23) famously differentiated between communists – those who read Marx and Lenin – and anticommunists – those who understand Marx and Lenin. The critics of the CHM paradigm seem to have a thorough understanding of the flaws plaguing this system. Addressing the Scottish Unionist Conference in 1948, Winston Churchill (2003, p. 446) called socialism “a deadly fallacy . . . the philosophy of failure, the creed of ignorance and the gospel of envy”. A criticism of the CHM paradigm is a criticism of communism and socialism. The main argument in opposing the CHM is that communism has failed on earth, and there is no reason this will not happen in outer space. According to Reynolds (1995, p. 118), the anti-market and statist ideas embodied in the Moon Agreement and NIEO have been discredited by the countries that have embraced them. The Soviet Union has ceased to exist, and the former socialist countries of Eastern Europe reverted to democracy and the market economy almost two decades ago. African-American analyst Thomas Sowell (1999, p. 104) wrote that academic Marxists in the US are nonetheless “utterly undaunted” by the collapse of communism throughout Eastern Europe: “Socialism in general has a record of failure so blatant that only an intellectual could ignore or evade it”. The arguments infra – true as they be – can be equally ignored or evaded. A number of authors oppose the CHM approach as an antithesis to property rights, seen as essential for the development of space. Michele Hamilton (1988) considers the problems plaguing the paradigm as being obvious; the lack of a strong protection of private property rights eliminates the incentive for private investors to mine the extraterrestrial ore, to develop the know-how associated with this and to get involved in countless other uses of the celestial bodies. She believes that the telecommunications industry would not have reached its current level if the communal approach paradigm would have been applied to satellite development.

132


Michel Smirnoff (1972, p. 175) criticized a draft of the Moon Agreement, deeming that one needs to be realist when it comes to the terrestrial exportation of the lunar resources: If the States which spent the huge sums for the exploration of the Moon will not have the legal possibility to exploit those resources, then they will be confronted with two possibilities: 1 – to stop the explorations or 2 – to continue those explorations ignoring the non-realistic formulations of the Treaties.

According to Alan Marshall (1995, p. 51), a supporter of the CHM paradigm, the prospect that companies could have to rent the site of extraction from the global community would “provoke yelps of horror from space capitalists whose ideological tradition would make them reply that those who take the risk and invest the capital should reap the rewards”. From an opposite ideological stand, Listner (2005) considers, indeed, that “[i]t’s no wonder that private enterprise is loath to invest in technologies to exploit space with these conditions hanging over their heads”. Wassenbergh (1991, p. 82) deems that the CHM concept is too idealistic, as it takes for granted a very strong international solidarity. Whereas such a situation is utopian, each country tending for its own interests, the much-hated capitalist ideological tradition is quite functional. Another disparagement of the CHM model pertains to the capacity of the developing world to evolve through its own means, and to the progress of the economy. P.J. O’Rourke (1996, p. 154) explains that collectivism does not work due to the faulty economic premise it is based on. In his view: There is no such thing as a person’s ‘fair share’ of wealth. The gross national product is not a pizza that must be carefully divided because if I get too many slices, you have to eat the box. The economy is expandable and, in any practical sense, limitless . . . The lesson of economic development is that what happens when we run out of a resource is what happened when we ran out of whale oil – nothing.

A critic of the Communist Manifesto, W.J. Rayment (2000) considers that, while Marx was right in viewing the world in terms of class struggle, he failed to understand that efficiency would lead to an increasing affordability of the means of production. Free societies would elevate the working class to the entrepreneur class, instead of bringing society down to the lowest common denominator. Indeed, Rayment’s logic is supported by the evolution of India and the People’s Republic of China into spacefaring powers, a tangible proof that developing nations can – and will – participate in the development of space resources. Reynolds (1995, p. 118) remarked as well that space capability is no longer a “superpower monopoly”, exemplifying with the credible space programs of the two nations mentioned above, opinion leaders of the developing world. At his turn, space entrepreneur Jim Benson (1998, pp. 48–49) finds the argument that less developed countries are unable to participate in space as currently unsubstantiated. While in the past it was believed that deep space science and resource exploration missions needed to cost billions of dollars, rapidly advancing miniaturization decreased the cost with about an order of magnitude per mission generation, putting it within the reach of any country in the world that wishes to participate at 12 million or less for a deep space experiment.

7.6 Conclusion

133

Indeed, due to the limitless resources of the outer space and to the evolution of the developing world into players on the space arena, it does not matter whether the latter do not hold the pole position in the new commercial space race. Another reason for criticizing the CHM regime is that it is an expression of the “culture of entitlement”. This has been described by Judith Bardwick (quoted in Anderson, 2002), as being: an attitude where people believe they do not have to earn what they get. They believe they deserve . . . [and] are owed it because of who they are, not because of what they do. In such a culture people take what they have for granted, keep asking for more, and are never satisfied.

Dave Anderson (2002) laments the whole society having moved toward a culture of entitlement over the years, an ethos whose motto is “[w]eaken the strong to strengthen the weak”. Keith Urbahn (2005) laments as well the “culture that promotes widespread dependence on government handouts”. In his view, a society of entitlement rates justice “not by how much the government encourages those who succeed, but by how much it rewards those who don’t”. In his view, this equates with a “license for mediocrity”, denying individual responsibility and creating convenient excuses for failure. Instead, as explained by Locke (1690, Chapter 5, Section 34), the world was given: to the use of the industrious and rational, . . . not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement, as was already taken up, needed not complain, ought not to meddle with what was already improved by another’s labour: if he did, it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground . . . whereof there was . . . more than he knew what to do with, or his industry could reach to.

What is more worrying is that the CHM concept goes even beyond Marxism. In terms of international space economics, the developing countries are not the equivalent of the proletariat – a productive class – but of the lumpenproletariat. The havenots are not lunar wage-workers whose surplus labour would be exploited by the lunar bourgeoisie. In fact, the true working class of the space economy would be the spacefaring states, upon which the freeloading have-nots would depend as the lumpenproletariat depends upon the bourgeoisie.

7.6 Conclusion The analysis above, and the terrestrial history of communism, prove that Marxism is a fallacy. Outer space needs to be spared the painful experience of the former Eastern Block. Despite the noble ideals of equity and care for the have-nots, the CHM paradigm has more faults than merits. A refutation of the Common Heritage principle does not mean, however, that the developing world will, or should, be left behind in the space era. China, India and Brazil are living proofs that a developing country can, through its own effort, join the spacefaring club. Instead of freeloading on the efforts of the older spacefarers, the have-nots should pool their meagre

134


financial resources into a common space agency or into regional ones, and proceed at exploiting the riches of outer space for themselves. The rallying cry of Marxism – “Proletarians of all countries, unite; you have nothing to lose but your chains” should evolve into “Countries of the world unite – you have nothing to lose but the chains of gravity”. The skies are open.